A Texas state appeals court has affirmed a lower court ruling that a referee was not a fault for a collision with a coach that took place during a play on the football field.
“The fact was that the referee was where he was supposed to be, doing exactly what his job required,” held the panel of judges. “For the referee to perform the essential functions of his duties as a linesman referee, while the ball was in play, he had to focus on the football field and not look for coaches inside the restricted area.”
The incident occurred during a football game at Alamo Stadium, when referee Charles Harpole ran into Brackenridge High School assistant football coach Terry English who sustained a serious head injury.
According to the rules adopted by the SAISD, a fifty-yard long and six-foot wide restricted area is designated in the middle of each sideline for the referees to use during live play. More specifically, the rule prohibits both coaches and players from being in the officials’ box while the ball is in active play. The rule allows the referees, specifically the line officials such as Harpole, to follow the play and mark the ball, by running unimpeded in a restricted area, free from encroachment by others. Immediately behind the restricted area is a six-foot wide region available for the coaches’ use and designated as the “Coaching Box.”
During the third quarter of the game, Referee Harpole, the head linesman for the game, ran south down the restricted area and directly into the back of Coach English. All of the parties agree that the collision occurred in the restricted area of the field. When Harpole collided with English, Harpole’s head slammed into the back of English’s head. English lost consciousness and fell to the ground. English suffered Grade 3 brain injury and is permanently disabled.
Midwest Employers Casualty, which provides worker’s compensation insurance for the SAISD and compensated Coach Terry English for lost wages and medical benefits, sued Harpole and the other referees for negligence.
The referees countered that they owed no duty to English, and that even if they owed him a duty, there was no evidence of a breach of that duty. Following over a year of discovery, the referees filed a motion for summary judgment and a no-evidence motion for summary judgment based on lack of duty. The trial court granted both motions on September 18, 2007, spawning the present appeal.
Midwest’s argued that summary judgment was improperly granted in favor of the appellees because Harpole was under a duty to act as a reasonable prudent person as he officiated the game, and that more than “a scintilla of evidence was presented that Harpole, in particular, breached that duty by running ‘more aggressively than normal,’ ‘at full speed,’ and ‘faster than normal’ without looking where he was going when he knew there were people in the area.”
Midwest also argued that the referees “were under a duty to enforce the rules of the game, and that it presented more than a scintilla of evidence that the referees breached that duty by permitting, and actually encouraging, coaches like English to work in the restricted area when the referees knew it was dangerous.”
One of the key considerations by the panel on appeal was that Harpole failed “to exercise reasonable care when he ran down the sideline full speed without looking where he was going. See RESTATEMENT (SECOND) OF TORTS § 323 (1965). Moreover, Midwest contends that English’s injuries were a result of Harpole’s ‘failure to exercise reasonable care to perform his undertaking.’ Id. Furthermore, in accordance with section 323’s requirement that the actor’s failure to exercise reasonable care ‘increases the risk of such harm,’ Midwest claims the evidence shows Harpole specifically did not watch where he was going even after ‘glancing off’ another person during his run down the sideline.
The referees responded that the courts “have not applied section 323 in the context of injuries in a sporting event, and that Harpole owed no negligence duty to English regarding a risk inherent in the sport of football. Even if the Referees owed a duty to exercise reasonable care, the appellees argue there is no evidence the Referees failed to exercise reasonable care in performing their duties as officials.”
The panel wrote that “to establish a claim for a negligent undertaking, a plaintiff must show (1) the defendant undertook to perform services that it knew or should have known were necessary for the plaintiff’s protection, (2) the defendant failed to exercise reasonable care in performing those services, and either (3) the plaintiff relied upon the defendant’s performance, or (4) the defendant’s performance increased the plaintiff’s risk of harm. Pugh v. Gen. Terrazzo Supplies, Inc., 243 S.W.3d 84, 94-95 (Tex. App.–Houston [1st Dist.] 2007, pet. denied) (citing Stutzman, 46 S.W.3d at 838); accord Tex. Woman’s Univ. v. The Methodist Hosp., 221 S.W.3d 267, 284 (Tex. App.–Houston [1st Dist.] 2006, no pet.); see also RESTATEMENT (SECOND) OF TORTS § 323 (1965). Thus, under a negligent undertakings claim, Midwest was required to provide at least some evidence that (1) Harpole undertook to perform services that he knew were necessary for English’s protection, (2) Harpole failed to exercise reasonable care in providing those services, and (3) English’s reliance on Harpole’s actions increased the risk of harm to English.”
The referees argued that “sporting events, with their inherent risks, should not be analyzed under a negligent undertakings construct. However, assuming without deciding that a negligent undertakings analysis is appropriate, we believe the Referees established, as a matter of law, that there was no evidence that Harpole failed to exercise reasonable care in refereeing the game, thus precluding a negligence claim under section 323.
“The summary judgment evidence established that Harpole ran down the sideline at full speed without looking where he was going. Midwest claims that this is sufficient to raise a fact issue on failure to use reasonable care. However, we cannot review this evidence without considering the services being provided by Harpole. The evidence is also undisputed that Harpole was in the midst of refereeing a play, running down the designated referee restricted area, and performing the services for which he had been retained by SAISD. There is no evidence that English’s injuries were a result of an improper application or violation of the NCAA rules which govern Harpole’s provision of services.
“The fact is that Harpole was where he was supposed to be, doing exactly what his job required. For Harpole to perform the essential functions of his duties as a linesman referee, while the ball was in play, he had to focus on the football field and not look for coaches inside the restricted area. The rules governing both coaches and referees require a safe zone for the referee to perform his service in a safe manner. Relying on these rules, Harpole, or a reasonable person performing the duties of a linesman, would not have anticipated the encroachment by English. We, therefore, conclude that Harpole’s failure to foresee English’s presence in the restricted area is not some evidence of Harpole’s failure to exercise reasonable care. Thus, Midwest failed to present any evidence of a necessary element of a negligent undertaking claim — Harpole’s failure to exercise reasonable care in providing his services.”
Midwest Employers Casualty Company v. Charles Harpole, et al.; Ct.App.Tex., 4th Dist., San Antonio; No. 04-08-00183-CV, 2009 Tex. App. LEXIS 4735; 6/24/09
Attorneys of Record: (for appellant) Beth Watkins Squires, Law Office of Beth Squires, San Antonio, TX. (for appellee) Gary N. Schumann, Savrick, Schumann, Johnson, McGarr, Kiminski & Shirley, L.L.P., Austin, TX; Alan S. Goldberger, Goldberger & Goldberger, Clifton, NJ; Jason L. West, Brock Person Guerra Reyna, P.C., San Antonio, TX.
